Civil law property final exam notes (robert godin) april 2007

Section 6: the right to ownership, enjoyment and free disposition of property Section 49


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Section 6: the right to ownership, enjoyment and free disposition of property

  • Section 49: allows punitive damages to be given to an individual when there is proof of significant harm to an individual; which is not very common in the Civil tradition

      • This rights are extended to tenants, lessees as per Investissements Historia inc. c. Gervais Harding et Associés Design inc

        • In this case the C.A allowed a tenant to get damages for a landlord impeding his right to his free enjoyment of property

    Patrimony (Patrimoine)

    Civil law notion that describes a factual concept

    • Business people would refer to this as the aggregate of one’s assets and liabilities

    • Consists of all property and debts

    Codes don’t define patrimony

    Art. 2

    Every person has a patrimony.

    The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.

    Art 302: Every legal person has a patrimony which can be acquired and appropriated; though this should be implied nonetheless, because the word person includes both natural and legal persons

    Art. 302

    Every legal person has a patrimony which may, to the extent provided by law, be divided or appropriated to a purpose. It also has the extra-patrimonial rights and obligations flowing from its nature.

    Patrimony then is the term used to describe the universality of rights and obligations (assets and liabilities) attached to a person

    • Aubry and Rau: the combination of the biens of a person

    • In principle every person has a patrimony and patrimony only exists through a person

    • Expressed in pecuniary means

    • It consists of not only present but also future property

    Three main principles

    • Each patrimony constitutes a homogeneous universality of rights and obligations (Terré and Simler)

    • This universality is linked directly to a person

    • Each patrimony includes only pecuniary rights

    Rights that although attached to an individual person, are not immediately expressed in pecuniary terms, are droits extra-patrimoniales

    One area in which patrimony concept is really significant is the area of common pledge (gage commun); a rule of public order; Arts. 2644-2647

    • The notion of patrimony here is that any obligation one has can be executed by use of one’s assets

    • Common pledge: all of one’s assets must fulfill all of one’s obligations; our patrimony is liable for our obligations

      • If there are more debts than assets, the creditors will have to share the existent patrimony of the debtor given the proportion of how much is owed to them
      • If you had given your house on an hypothèque to one creditor in particular, then this is taken away from you patrimony when calculating the division of your assets to other creditors

    Art. 2644

    The property of a debtor is charged with the performance of his obligations and is the common pledge of his creditors.

    Art. 2645

    Any person under a personal obligation charges, for its performance, all his property, movable and immovable, present and future, except property which is exempt from seizure or property which is the object of a division of patrimony permitted by law.

    However, the debtor may agree with his creditor to be bound to fulfil his obligation only from the property they designate.

    • The second paragraph also makes reference to the idea that by agreement the parties can decide to limit the security given to the creditor to a specific asset (limited recourse)

      • Relatively new concept in Canada

      • Lenders will do this when they feel very secure and see little risk

    Art. 2646

    Creditors may institute judicial proceedings to cause the property of their debtor to be seized and sold.

    If the creditors rank equally, the price is distributed proportionately to their claims, unless some of them have a legal cause of preference..

    • When creditors rank equally

    Art. 2647

    Prior claims and hypothecs are the legal causes of preference.

    • Hypothecs get preference

    Courts do not accept violations of the notion of the common pledge (see Pierre Roy & Associés inc. c. Bagnoud)

    An interesting example is the case of successions

      • Before, when you died, your assets and liabilities automatically passed on to your legal heirs with a few exceptions

        • Not until the time an inventory was made

        • Exception of separation of patrimony

      • With the new code (second part of Art.625), there heirs are not bound by the obligations of the deceased to a greater extent than the value of the property of the deceased

      • Art. 780 The patrimony of the deceased is separated from that of the heirs until the succession is liquidated

        • When the patrimony of the deceased passes to heirs it remains separate and not immediately combined with that of the heirs (so that the exclusive patrimony of the heirs, and the interests of their creditors are protected)

        • Liquidation is when the value of the assets has been calculated and the debts paid, so that it is determined what can be passed on to the heirs

    Art. 625

    The heirs are seised, by the death of the deceased or by the event which gives effect to the legacy, of the patrimony of the deceased, subject to the provisions on the liquidation of successions.

    The heirs are not, unless by way of exception provided for in this Book, bound by the obligations of the deceased to a greater extent than the value of the property they receive, and they retain their right to demand payment of their claims from the succession.

    The heirs are seised of the rights of action of the deceased against any person or that person’s representatives, for breach of his personality rights.

    Art. 780

    The patrimony of the deceased is separate from that of the heir by operation of law until the succession has been liquidated.

    This separation operates in respect of both the creditors of the succession and the creditors of the heir or the legatee by particular title.

    Partnerships and patrimony

    • A partnership has not been given a juridical personality in Quebec, in France they do

    • It is not a tax payer, which is the case of a juridical person

    • Its patrimony is an interesting situation

      • It can have a patrimony regardless of not having a juridical personality (patrimony by appropriation as put recently in a case in 2006)

    • Partners are responsible for the payments of creditors of a partnership (no limited liability as in a corporation)

      • But before the creditors of the partnership are paid, the assets of the partner have to be liquidated against her/his own creditors (Art. 2221)

      • See Roy c. Boivin Carrier

    Art. 2221

    In respect of third persons, the partners are jointly liable for the obligations contracted by the partnership but they are solidarily liable if the obligations have been contracted for the service or operation of an enterprise of the partnership.

    Before instituting proceedings for payment against a partner, the creditors shall first discuss the property of the partnership; if proceedings are instituted, the property of the partner is not applied to the payment of creditors of the partnership until after his own creditors are paid.

    There are other usages of the word patrimony in the code, not on a “proper” strict legal sense

    • In the part of fiduciary substitutions

    • An institution that existed traditional French law which dealt with transferring property from one generation to another (first generation to receive it was called the institute and the next the substitute)

    • Art. 1223 they used the term separate patrimony when referring to the property passed on to the institute to be passed on to the substitute, while in reality it is not a separate patrimony of the institute

    • In the part of family patrimony (Arts. 414-416)

    • Something is called a family patrimony, regardless of who owns title

    • At union dissolution, the patrimony is split equally

    • But what happens before dissolution? Whose debts does this property pay?

      • As long as the marriage is there, each spouse can deal with the property as they see fit (so it really belongs to the patrimony of one spouse or the other and is not really a joint patrimony); family patrimony only finds its expression in the dissolution

    • Couture c. Gagnon: two people could simulate a family patrimony by contract and it is valid for the two parties, but not a third party


    Before the opening of a substitution, the institute is the owner of the substituted property, which forms, within his personal patrimony, a separate patrimony intended for the substitute.


    Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.


    The family patrimony is composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan. The payment of contributions into a pension plan entails an accrual of benefits under the pension plan; so does the accumulation of service recognized for the purposes of a pension plan.
    This patrimony also includes the registered earnings, during the marriage, of each spouse pursuant to the Act respecting the Québec Pension Plan or to similar plans.

    The earnings contemplated in the second paragraph and accrued benefits under a retirement plan governed or established by an Act which grants a right to death benefits to the surviving spouse where the marriage is dissolved as a result of death are, however, excluded from the family patrimony.

    Property devolved to one of the spouses by succession or gift before or during the marriage is also excluded from the family patrimony.

    For the purposes of the rules on family patrimony, a retirement plan is any of the following:

    • a plan governed by the Act respecting Supplemental Pension Plans or that would be governed thereby if it applied where the spouse works;

    • a retirement plan governed by a similar Act of a legislative jurisdiction other than the Parliament of Québec;

    • a plan established by an Act of the Parliament of Québec or of another legislative jurisdiction;

    • a retirement-savings plan;

    • any other retirement-savings instrument, including an annuity contract, into which sums from any of such plans have been transferred.


    In the event of separation from bed and board, or the dissolution or nullity of a marriage, the value of the family patrimony of the spouses, after deducting the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it, is equally divided between the spouses or between the surviving spouse and the heirs, as the case may be.

    Where partition is effected upon separation from bed and board, no new partition is effected upon the subsequent dissolution or nullity of the marriage unless the spouses had voluntarily resumed living together; where a new partition is effected, the date when the spouses resumed living together is substituted for the date of the marriage for the purposes of this section.


    • Art.2 Every person has a patrimony, it can be divided or appropriated, but only to the extent provided by the law
    • Appropriation is the term used to translate affectation

    • This applies to the idea of trust which only became part of the Code in 1888

    • Influence of Anglo-Saxon tradition (the split of legal and beneficial title)

    • They tried to integrate it in the CcQ with the patrimoine d’affectation

    • It does not have juridical personality, and by definition is not owned by anybody; Art. 1261

    • The liabilities of this patrimony cannot affect the trustees or beneficiaries

    The use of patrimony in crown corporations is also interesting

    • E.g. Hydro Quebec

      • Hydro Quebec’s patrimony and juridical personality is provided by statute

      • The company is conceived as acting on the state’s mandate (mandatary)

      • The property possessed by the company is the property possessed by the state

      • The company bounds no one but itself and acts in its own name

    Patrimonial and extra-patrimonial rights

    • Patrimonial have a pecuniary value; doesn’t include all of a person’s rights

    • Extra-patrimonial are not expressible in monetary terms, but are not any less important (personality rights); Art.3

      • Right to life, reputation, privacy, respect of her person

      • They are inalienable, they cannot be transferred, sold

      • A person’s body or part of it cannot be sold (Art.25)

      • A person cannot be imprisoned for debt

    • The line between patrimonial and extra-patrimonial is often blurred, because while a violation can be done to extra-patrimonial rights, it can be compensated through pecuniary means
      • A person’s right of affiliation to a person, could warrant you patrimonial rights in inheriting this patrimony

        • Interestingly the heirs inherit the right of affiliation when someone dies and they can make claims based on these for three years (Art.536)


    Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.

    These rights are inalienable.


    The alienation by a person of a part or product of his body shall be gratuitous; it may not be repeated if it involves a risk to his health.

    An experiment may not give rise to any financial reward other than the payment of an indemnity as compensation for the loss and inconvenience suffered.


    In all cases where the law does not impose a shorter period, actions concerning filiation are prescribed by thirty years from the day the child is deprived of the claimed status or begins to enjoy the contested status.

    If a child has died without having claimed his status but while he was still within the time limit to do so, his heirs may take action within three years of his death.

    Syndique: name given to a trustee in bankruptcy

    Syndicat: labour unions, condominium corporation

    • In the case, his right was extra-patrimonial and could not be ceded to someone else

    Are extra-patrimonial rights transmissible?

    • Art. 35 has been amended to exclude heirs. Probably the consequences of the case (Torrito) of the child with the disease and his parents claims to her extra-patrimonial rights


    Every person has a right to the respect of his reputation and privacy.

    No one may invade the privacy of a person without the consent of the person unless authorized by law.

    Changes over the last years

    • The concept of wealth has changed

    • Movables and intangibles were not that significant before

    • I.P. does not fit in this, though its value and wealth-generation is great

    • A lot if this ideas and categories have been hanging because of necessity and social transformations

    Real and Personal Rights

    A distinction with a long tradition and complex historical background

    • Has a great impact in the practical application of the law

    • Inherent to Civil Law

      • Real property and personal property in common law refers to immovables and movables, but not real and personal rights

      • In civil law is about relationships

      • The patrimony is made up of rights

    Real right, jus in re, droits reeles

    • Right in the thing itself

    • Direct relationship to a thing without anything in between, between le sujet du droit and l’objet du droit

    • A direct and immediate power that a person has over the thing

    Personal right, jus in personam, droit de creence

    • Establishes a relationship between persons and is exercisable against one person

    • A juridical relationship between two persons: a creditor and a debtor

    • What it refers to is the obligation (or prestation) which is the doing or not doing of something

      • An asset is created in the patrimony of the creditors, and a negative or debt in the patrimony of the debtor

      • Creditor is sujet actif and debtor sujet passive

      • Prestation is the obligation of someone to another

    The recourse when we are dealing with real rights is directly against the thing, while personal rights is between the creditor and debtor and involves a variety of actions

    • Art. 1519: if the debtor does not fulfill his obligation he is on default and the creditor may take measures in contractual obligations to the extent provided by the law


    An obligation is divisible by operation of law, unless it is expressly stipulated that it is indivisible or unless the object of the obligation, owing to its nature, is not susceptible of division either materially or intellectually.

    The Lease: An Example
    • Art.1851 establishes the relationship between the lessor and the lessee and the idea that there are some rights and obligations between the two

    • Art. 1854 defines the rights and obligations of these two and the obligations of the lessor

    • Art. 1855 states the obligations of the lessee

    • In time, with legislations, a lease has come to appear as something that creates real rights

      • So there is a mixture of rights; personal and real

    Another example is when an owner of a place enters in a relationship with a prospective purchaser (Buying a house)
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